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Facts Conceded at Officer’s Rape Trial

After a prosecutor told jurors on Thursday that an off-duty police officer had threatened to shoot a 25-year-old woman in the face if she screamed or looked at him while he raped her in an Upper Manhattan courtyard last summer, the officer’s lawyer had his chance to dispel that image from the jurors’ minds.

But in his opening remarks, the lawyer, Ephraim Savitt, acknowledged that the officer, Michael Pena, had done things that were “unforgiveable” and “criminal,” and had at least attempted to do everything that the prosecutor had described. He sympathized with the victim, who was on her way to start a new job as a teacher, as someone “whose life was shattered that morning” and “who deserved better.”

“He did in fact assault her,” Mr. Savitt told jurors. “All those things the People will be able to prove, because they happened.”

Mr. Savitt added, though, that DNA evidence and eyewitness accounts did not prove that his client had penetrated the victim, or support the most serious charge, predatory sexual assault, which could send Officer Pena, 27, to prison for life.

“Should he do jail time? The answer is yes,” Mr. Savitt said outside court. “But he shouldn’t do 10-to-life.”

Officer Pena’s trial in State Supreme Court in Manhattan, which is expected to last about a week, is the second rape trial involving city police officers in the last year. Last May, a Manhattan jury acquitted Kenneth Moreno and Franklin L. Mata of rape charges but found them guilty of official misconduct, a misdemeanor.

That verdict was a disappointment for the office of the Manhattan district attorney, Cyrus R. Vance Jr., who personally attended the opening remarks in the Pena case.

The case against Officer Pena, who is being held at Rikers Island in $500,000 bail, is in some regards a twist on the Moreno and Mata case. Whereas their accuser was intoxicated and the officers were on duty, Officer Pena had spent the night in a bar and the victim was freshly dressed and off to an early start.

Photo

Officer Michael Pena in State Supreme Court in Manhattan, where he is on trial on rape charges.Credit
Michael Appleton for The New York Times

Both the prosecution and the defense agree on the events that led up to the attack.

An assistant district attorney, Evan Krutoy, said Mr. Pena had arrived at a bar in the Inwood section shortly after midnight. The bar has nightly events, and that night, strippers were dancing.

At about 3:30 a.m., he sent a text message on his phone to a woman he had met during his shift the day before. He called her “sweetie”; she did not respond. He tried to chat with a waitress, but she rebuffed his advances, Mr. Krutoy said. He called more than one escort service at about 5 a.m., but those calls also were not returned, the prosecutor said.

He left the bar and began walking the neighborhood.

The woman had moved to the city hoping to become a teacher. She had been hired the day before by a charter school to teach second grade. Her new principal, who lived nearby, had offered to drive her to work, the prosecutor continued.

The woman arrived outside her new boss’s building a few minutes after 6 a.m. and sent a text message to the principal saying she was outside. But when the principal emerged, the new teacher was gone.

Officer Pena, who was not in uniform, asked for directions to the subway. After the woman answered, he suggested she accompany him. She declined, and he lifted his maroon T-shirt to reveal a 9-millimeter Glock pistol.

“You’re coming with me,” Officer Pena told her, according to the prosecutor.

He led her down a narrow alley to a paved courtyard amid several apartment buildings and garages. Two residents whose windows open to the courtyard saw what they believed to be Mr. Pena having sex with the woman.

One of the residents, a man, said something to Officer Pena.

“Don’t worry, I’m almost done,” Officer Pena told him, according to the prosecutor.

The other resident, a woman, was concerned by the tone of the woman’s voice and that she was covering her eyes and mouth with her own hands.

“The totality of what she saw and heard gave her a very clear impression,” Mr. Krutoy told jurors, that “something bad is happening.” She called the police.

A version of this article appears in print on March 16, 2012, on page A22 of the New York edition with the headline: Facts Conceded at Officer’s Rape Trial. Order Reprints|Today's Paper|Subscribe